Brink Messick’s long-awaited Sharīʿa Scripts is finally out at Columbia University Press:
Multi-century approaches of the sharīʿa have regrettably
transformed law into a banal history of ideas without much connection to
practice. Messick’s Sharīʿa Scripts
takes the sharīʿa right from the economy of the local, that of central Yemen,
and places research at a micro level. Historical anthropology makes possible
the tracing of genealogical lines of power relations, and the depiction of
narratives and discourses in relation to local practices. This book, which
takes the logic of texts and their practices to new heights, stands out as a
masterful contribution to sharīʿa studies worldwide.
Brink Messick’s book-manuscript on sharia discourses in
modern Yemen comes as a welcome change to a literature predominated by studies
of long durations of “Islamic law” and the sharia. Messick’s main contention
that the sharia is only meaningful as a “local enterprise” (212) in the space
and time of a particular territory and political economy is a major endeavor to
understand the sharia in all its concreteness as a discursive reality within a
régime of truth. Thanks to Columbia University Press for publishing the
manuscript in its integrity, without major cuts or changes. This is a much
needed book that will open sharia studies to new horizons, and would serve as
reference for scholars and students. Even though Messick’s preoccupation
centers on “legal” practices and discourses, the book could nevertheless serve
as a template for an understanding of Islamicate societies in terms of micro-discursive
genealogies of power and régimes of truth.
For years I have been using Messick’s Calligraphic State in my seminars as a must-read reference to
understand how sharia texts in all their diversity are constructed in a space
and time of competing discourses—Bakhtin’s chronotope model of a space-time
configuration of competing pretenders. Messick’s present book provides an even
more refined optic for reading texts as x-rays of the power-relations in the
archival layers of historical formations to which they belong. This new optic of
reading texts in their space and time dimensions demands refined
micro-hermeneutical techniques for the power relations to come fully to light,
as neither space nor time as categories of knowledge are privileged, since they
are utterly interdependent.
Most studies of Islamic law take as their point of departure
the postulate that the sharia binds together fifteen centuries of rules and
regulations for the societies that are governed under such precepts. In this
multi-century approach what is favored, besides the overall coherence of the
enterprise of the fiqh (the interpretations of the sharia, which are
distributed into a multitude of madhāhib, or law schools), is discourse over
practice, or theory over the contingencies of the terrains that are governed by
sharia law. Such approaches, which predominate the research in Arab and
Islamicate societies and in the West as well, leave us with all kinds of
problems and unsolved issues. First of all, they assume that our understanding
of sharia law is limited to (or predominated by) the doctrinal level, that is,
the discourses that are generated in the libraries of the fiqh manuals across
centuries, which in their totality have a level of coherence that cannot be
achieved in practice. Second of all, the archival material, whenever available
(in particular for the Ottoman centuries), is supposed to be an application of
the grand theory as generated by the various madhāhib. There is thus undeniably
a “precedence” of the doctrinal over the archival, in the same way that there
is a “precedence” of the written text over the oral, or what is said over the
seen.
Brink Messick’s book on Yemen in its pre-Republican period
comes as a much needed enterprise that challenges the precedence of the
doctrinal over the archival, or the library of the fiqh over the archive, or
the universal concept over the regional. This is a rare and sophisticated
endeavor which points at how much work and patience are needed once we move from
the macro to the micro-historical in all its textual complexities (322).
Messick has already outlined his method in his Calligraphic State, published in 1993, and if the present
manuscript on sharia scripts in Yemen took so much time to materialize it is
because micro analysis is more demanding in its execution than anything that
the multi-century approach would dare to accomplish.
To begin with, Messick operates within a broad division that
places the fiqh manuals in a “library” framework, which stands on its own in
the face of the various “archival” materials. The latter are comprised for the
most part of the texts produced by the sharia courts and what the parties in
conflict or in a notarial act keep in private in the sanctity of their own
homes as evidence that a transaction has been accomplished. Such documents
therefore “register” the contractual act that the parties must attend to.
However, Messick is not satisfied with such broad division
of “library” and “archive” on its own. Following Mikhail Bakhtin he
conceptualizes three levels of textual practices (or discursive practices).
There is one that is “primary” and which consists of all those document-texts
that are kept in the “privacy” of their holders, followed by the “secondary”
material of the sharia courts and other “public” instances, and, finally, the
“tertiary” level (sphere) of the fiqh manuals in their various genres (tafsīr, shurūṭ, and fatāwa). Those various levels are obviously not separate, they are
mutually interdependent, and rely on each other’s existence for their overall
organization. Thus, the “library” is the “tertiary” sphere following Bakhtin’s
classification, while the “archive” is formed by the “primary” and “secondary”
texts, or the “private” and “public,” following a modern civil-law
classification. There is no “primacy,” however, of one level over the other.
Thus, if the fiqh happens to be the “tertiary” textual discursive level (312),
the implication here is that it does not necessarily feeds itself on the
practices of the courts, nor are the courts obligated to use the “upper”
doctrinal corpus as their framework of reference; what they in fact do in most
instances is allude to the doctrinal works rather than cite them directly, even
though this possibility is, of course, not to be excluded. For example, when it
comes to the practice of writing fatwas, which is commonly assumed to be the
most “practical” aspect of sharia law, “there is no such direct connection
between local fatwā-giving and court processes” (159). Yet, the fatwas are
somehow “needed,” a need that remains elusive at best, particularly in
pre-Republican imamic Yemen where the presence of an interpreting imam roots
the fatwa in a régime of truth—and provides it with a much needed legitimacy—though
of a much higher symbolic authority than that of the mufti in Sunni Islam.
Because in the interplay between writing and the oral and
aural, there is no primacy or formal hierarchy (hence an absence of
logocentrism which would have pleased Jacques Derrida), “documentary evidence
does not stand by itself” (134). Presenting a document as evidence is a complex
program of “inscribed writing” (144), which goes through the various stages of
dictation (imlāʾ), witnessing, oral
reading, prior to creating an authoritative form of oral and aural transmission
(130). For instance, dictation involves on its own, first, a retention of the
dictated text in memory, and, second, the inscription of a transformed version
in writing, both of which constitute a form of “knowledge.” What is therefore
at stake in oral reading and dictation is memory, the material trace, and
expression (133). I look at the latter as various topoi of practice, which
bypass the rigidity of formal hierarchies, and which make the analysis of
discourse possible. The traditional macro studies of the fiqh corpuses, which tend
to bracket practice (which by definition operates at a micro level in relation
to a territory and political economy), are unable to analyze the fiqh texts as
discourses—the latter would eo ipso assume their operation only in relation to
certain practices.
We thus have a multitude of juxtaposed texts and archival
formats operating at different discursive levels with no primacy as such, which
makes Bakhtin’s classification of primary, secondary, and tertiary, which in
this instance translates as notarial documents, courts processes, and fiqh
doctrinal corpus, a bit problematic, even though it serves at delineating
discursive series that could be viewed as autonomous in their own right. What
in effect Messick is attempting is a direct immersion in practice, without the
need to make false delineations like theory versus practice, or the doctrinal
versus the court practices. For example, when in Chapter 10 contracts are
examined, the question of contact-law versus contract is not portrayed as operating
within a formal hierarchy, say, that a contract drafted in court must obey
clauses of contract-law. The reason for this absence of a formal hierarchy is
that once we establish practice—hence discursive practices—as our main entry
into the system, the traditional hierarchies, which generations of scholars
have been operating with, receive a new meaning, if at all. We may also not
need them at all. For example, when it comes to contracts and the laws derived
from the fiqh, Messick avoids the rigid dualism and operates instead in terms
of composition, modeling, and models (340). Practice here means “understanding
the textual properties” (299) of a text which could be a document emanating
from a sharia court, a Zaydī fiqh manual, or an official bureaucratic document.
Moreover, this approach has to account for evidential texts that could be
written or spoken. What is crucial here, when it comes to the written and
spoken, is, again, there is no primacy of one over the other. The same could be
said about the spoken and the seen: the say is not to see, parler n’est pas voir, as Foucault would say, following Maurice
Blanchot.
By taking practices and their discourses as his entry point,
Messick is able to extract from the various discursive layers under analysis themes
(or topoi) that may not have been apparent at face value. Of particular
importance in this regard is the theme of custom (understood as ʿāda or ʿurf), which traditionally receives the treatment of an “outside”
to written law, that is to say, how much of the latter has been “affected” by,
or acknowledged as, custom or customary law? What kind of margin does written
law tolerate within its corpus as far as custom is concerned? Messick’s
approach in contrast looks at the place of custom “not outside, but inside such
textual formation” (240), which implies an attentiveness to the “internal
duration to the act” of drafting documents. To elaborate, in the grand division
between the abstract non-historical “model” texts which serve as ready-made templates,
on the one hand, and the historical documents which have been drafted by
notaries, judges and their scribes on the other, it is indeed custom that plays
on that internal duration to the act of writing (which in turn is an outcome of
the oral and aural); hence it is custom that configures the historicity of a
document (361).
The immersion into practice is demanding, first of all
because it operates primarily and makes sense at a micro-level, and second,
because a genealogy of texts is necessary. In other words, unlike the
multi-century-macro approach which is historicist, in the sense that it is a
general history of ideas that sees each text the product of its own period
(even though the roots to this period in relation to practice remains by and
large unexplored), genealogy in contrast goes further than that, as it looks at
texts as operating in clusters. In the case of the Zaydī fiqh, for example, the
late fourteenth-century Book of Flowers
was still operative in the pre-Republican period, thanks in part to the
interpretations and commentaries in the 1930s and 1940s, of what became The Gilded Crown, with the
nineteenth-century interlude of the predominantly critical work of the “Sunni”
Shawkānī in between the original matn
text (which represented the condensation of the views of the five early imams)
and the subsequent tafsīr and sharḥ.
What is crucial here is the awareness that a
twentieth-century work like The Gilded
Crown is itself a work of previous centuries—a product of archeological
layers under different historical formations. The other side of genealogy is an
attention to the author–writer paradigm, which Messick borrows from Foucault.
14–15: Where library discourse
embodied a set of culturally and historically specific “author-functions,” archival discourse, in
contrast, comprised distinct writer-functions.
I adopt the plural both for Foucault’s well-known term and for my proposed
archival counterpart to account for the distinct genres that existed within
both the library and the archive. Following Foucault, both conceptions should
be understood as defining functions that provide a basis for what he termed “a typology of discourse.” In
this discursive sense, but in different genres, it was possible for the same
individual to be both an author and a writer.
I want to question the author-function which is attributed
to the library discourse (the fiqh doctrinal manuals). The assumption here is that
both library and archive are practices and discourses (or discursive
practices): should we then limit the archive to a writer-function, while the
library is endowed with the “privilege” of the author?
There are all kinds of writing roles in those texts, the
library and archival material: that of author, writer, editor, narrator,
signatory, but they are not all present in one text. For example, a contract
has a guarantor, but not an author; a letter has a signatory, but not
necessarily an author. But a letter drafted by a Zaydī imam has an author,
because it could be inscribed within a broader corpus, hence could be
disseminated and quoted on the basis of its authorship, due to the status that
this particular imam enjoys within the community of scholars. The idea here is
that for a text to have an author it must be inscribed within a broader corpus,
say, the œuvre of a particular author as the totality of his works. A court
verdict signed and sealed by a judge has a writer but does not have an author
on the basis that the judge cannot attach his text to a broader “work” of his
own making. In Islamic courts verdicts do not serve as precedent as they do in
common law, hence a decision by a judge remains localized without authorship. Doctrinal
texts in contrast have that authorial quality, because each work is attributed
to an author who is more than the writer of the text. Moreover, besides being
attached to an author, say, a Zaydī imam, a fiqh manual is part of a larger
ensemble of texts belonging to tradition. Messick is right when he traces the
genealogy of the “texts that matter” in pre-Republican Yemen to their
fourteenth- and nineteenth-century roots: it is such genealogy that makes both
discourse and authorship possible. What is probably unique about this kind of
authorship where the “school” (madhhab)
is predominant is the system of cross-referencing among the “authorities” of
the madhhab which spans across many centuries. In the scientific and literary
European genealogies analyzed by Foucault, the discovery of common discursive
layers is much harder, due primarily to an absence of direct cross-referencing.
I find a limit to this argument, in particular when it comes
to the “library” of doctrinal texts. Not that there is anything wrong with
attaching authors to such texts, but I question whether the fiqh manuals are
intended to be referred to specific authors in the first place. Let us recall
the tripartite division which is borrowed from Bakhtin, where “primary” and
“secondary” coincide with the archival materials used by individuals and courts
alike. Besides that such “archival” material is timely, it operates only by
attaching names, signatures, and seals to a document. Moreover, the concerned
parties and their witnesses are the names that matter, not the writer of the
document. The library texts—the tertiary level—share an a-temporality which
dissociates the text from its nominal writer-author.
15: Such
usage separates a named author or writer from a discursive function,
historical agency from textual form. For library texts,
this is to distinguish attributions to (and also in-text citations of) specific
authors from the patterned avoidance of the proper name. By the same token, the
possibility of dating a book or an opinion is distinct from the a-temporal
nature of its textual discourse. Among archival texts, in contrast, we enter a
realm defined by identified handwriting and the signed name of the court or
notarial writer and, in certain periods, a personal seal. Yet the discourse of the proper name
that was characteristic of an archival text pertained not to such
third-party secretaries or notaries, who in fact wrote and signed, but rather
to the principal parties, the individuals who entered litigation or a
contractual undertaking but who (usually) did not sign the resulting
documentation.
What I find of value in this claim is the “separation”
between author and discourse for the library doctrinal texts, but we need to
find out why this is the case. The other matter of contention is whether
between library and archive there is another “separation” regarding the proper
name attached to the text.
Messick follows a close reading of Foucault on the notion of
the author, but he misses a distinction that could be useful between statement
(énoncé) and sentence (phrase). A text is obviously composed of
sentences which refer explicitly or implicitly to a grammatical “I,” even if
the text is drafted in a third-person mode. This “I” which stands on behalf of
the writer, and could as well refer to an author, is what brings the text
together. When a series of texts are juxtaposed together as belonging to a
school of thought or way of thinking it is by virtue of their homogeneous
nature. Because anyone can attach the grammatical “I” to a sentence, the
claimed authorship is an external variable.
Foucault’s main contention is that statements are different
in this regard. First of all, statements are rare because they straddle between
several heterogeneous discursive layers. Statements make discourse possible
precisely because they are based on intrinsic variables. If the phrase derives
from a subject of enunciation (sujet
d’énonciation), the subject that pronounces it, the statement by contrast
does not derive from its subject: it is indeed the place of the subject that
derives from the statement (le sujet de
l’énoncé). The place of the subject is in turn an anonymous “we” (le “on” anonyme). In sum, we need to
distinguish between a subject of enunciation for sentences and phrases, and a subject
of the statement, which tends to be anonymous.
Which brings us back to the doctrinal fiqh manuals. There is
a common perception that the fiqh manuals are only nominally authored, since
they represent “compilations” (tajmīʿ)
of well-known opinions from previous generations of scholars. Each generation
compiles and re-arranges according to the relevant criteria of the period: one
has to be faithful to the tradition of the madhhab, but at the same time one
has to adapt to new situations, as new problems arise which would trigger the
hermeneutical circle. The author-faqīh becomes therefore a “compiler” who
re-interprets and re-organizes the old texts, which become “his” own, as well
as belonging to the madhhab, based on the criteria needed for his period. The
notion of “compilation” is at times looked upon condescendingly, as if it is
uncreative, lacks authorship, leading to an infernal repetition of the same, hence
to a disconnect with the social and economic reality of the time. This is
particularly true, we are told, of the Ottoman period, as researchers typically
shun the doctrinal manuals in favor of the more “real” sharia courts and other
bureaucratic documents.
Messick’s book is a direct response to such condescending
views: all discursive levels have realities of their own, and those realities
overlap and share languages and grammars, albeit they play different roles.
However, in light of the above proposals, we can reframe our take on the
various discursive levels a bit differently. Compilations do not in their
essence refer to an author or a subject of enunciation (sujet d’énonciation), but to a position of the subject (sujet de l’énoncé). They are therefore,
together with the primary and secondary levels, embedded into an archive within
a particular historical formation. The latter is inscribed within a diagram of
power-relations which produces the institutional apparatuses of knowledge.
Strictly speaking, therefore, I would argue that the primary, secondary, and
tertiary discursive levels, in their institutionalized organization between
library and archive, are all “archival,” whereby the “archive” is inscribed
with stratified historical formations. They are all discursive practices with
nominal authors and a collective “we” as reference.
Which brings me to my last point, regarding the presence (or
lack) of a third-party adjudication in the Zaydī system and in the fiqh at
large. By this I mean the presence of a universal process that would
accommodate any person as member of
the community (or “nation”) irrespective of religion, rank, and status. When
the delivery of truth by any member
of the community is accepted for what it is, seeing becomes of primordial importance in the process of
verification and validation of witnessing. That’s the kind of transition that
Yemen went through—a process that is by far from over—when the Zaydī imamate,
as a polity, was over in 1962 and the country became a civil-law republic. In a
civil-law political economy, where the reference to imamic traditions is not
anymore the norm, labor becomes finite, as its reference is a competitive
market economy where the traditional notions of equity and fairness are not
normative, at least not predominantly so. The modes of truth that produce
knowledge are based on a process of verification where the market economy
serves a reference.
Even though Messick’s book is mostly devoted to
pre-Republican Yemen, it nonetheless prepares us well for the transition that
Yemen has been going through since the Zaydī imamate was lost. To wit, a hidden
key notion in Messick’s analysis is the concept of governmentality, or gouvernementalité, understood as the
“mindset” (mentalité) of “government”—not
government in the strict Anglo–American sense of the term, but as the
management of relations of truth and verification, and the power relations that
they generate in the space of a political economy. Under the Zaydī imamate, and
in contrast to the land tenure systems of the Ottomans, land was mostly private
(milk), and the document of
sale-purchase, known as baṣīra, was
predominant (345). The wager here is to follow up such contracts under civil
law when the régimes of truth and governmentality are altered. Maybe this could
be the topic for another book which is already implied in this one.
Zouhair Ghazzal
Professor of history and social sciences
Loyola University, Chicago
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